R v BBI - [2007] QCA 376

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBI [2007] QCA 376

PARTIES:

R
v
BBI
(applicant/appellant)

FILE NO:

CA No 140 of 2007
DC No 45 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

2 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

16 October 2007

JUDGES:

McMurdo P, Dutney J and Douglas J
Separate reasons for judgement of each member of the Court, each concurring as to the orders made

ORDER:

Applications dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS - WHEN REFUSED – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the applicant was convicted of maintaining an unlawful sexual relationship and two circumstances of aggravation - where in 2003 the Court extended the time within which he could appeal against his conviction - where the appeal was listed to be heard but the applicant signed a form abandoning his appeal which was then taken to be dismissed when the registrar received that notice - where the applicant applies again for leave to adduce evidence, another application for extension of time within which to appeal and a notice of an application to appeal against his conviction and sentence – whether the notice of abandonment should be set aside – whether the applicant has shown realistic prospects of success.

Criminal Code Act 1899 (Qld) s 229B (2)

Criminal Practice Rules r 70(3)

Gallagher v The Queen (1986) 160 CLR 392, cited

R v Marriner (2006) 160 A Crim R 63, cited

COUNSEL:

Applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

Applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

PMcMURDO: The applications should be refused for the reasons given by Douglas J.

DUTNEY J: I have read the reasons for judgment of Douglas J. I agree with those reasons and the order he proposes.

DOUGLAS J: The applicant was found guilty of maintaining an unlawful sexual relationship with his daughter on 16 April 2003. The jury was also satisfied that two circumstances of aggravation, namely that the applicant raped the child and that he indecently dealt with her when she was under the age of 12 were proven. He was imprisoned for 11 years. On 29 October 2003 this Court extended the time within which he could appeal against his conviction. The appeal was listed to be heard on 16 February 2004 but, on 3 February 2004, the applicant signed a form abandoning his appeal which was then taken to be dismissed when the registrar received that notice.

On 25 June 2007 he filed an application for leave to adduce evidence, another application for an extension of time within which to appeal and a notice of an application to appeal against his conviction and sentence. It is those applications that are before us now.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v BBI

Details

AGLC: R v BBI [2007] QCA 376
Case: [2007] QCA 376
Decision Date: 2 November 2007

CaseChat Overview and Summary

The case of R v BBI concerns the applicant's appeal against his conviction for maintaining an unlawful sexual relationship, along with two instances of aggravation. The applicant had previously signed a form abandoning his appeal, which was subsequently dismissed by the registrar. The applicant now seeks leave to adduce evidence, another extension of time to appeal, and a notice of appeal against his conviction and sentence. The legal issues before the court were whether the notice of abandonment should be set aside and whether the applicant demonstrated realistic prospects of success.

The court examined the application for setting aside the notice of abandonment, considering the applicant's reasons for abandoning the appeal and whether there were any exceptional circumstances. The court also assessed the merits of the applicant's appeal, including the evidence and arguments he intended to present. The court found that the applicant did not provide a satisfactory explanation for the abandonment and that there were no exceptional circumstances warranting setting aside the notice. Furthermore, the court determined that the applicant had not shown realistic prospects of success in his appeal against conviction and sentence.

In light of these findings, the court dismissed the applications. The court held that the notice of abandonment could not be set aside and that the applicant had not demonstrated a realistic chance of success in his appeal. Consequently, the applications for leave to adduce evidence, extension of time to appeal, and appeal against conviction and sentence were all dismissed.

The final orders of the court were that all applications made by the applicant were dismissed. The court did not grant any relief to the applicant, and the conviction and sentence remained unchanged.

Orders

Orders of the court

Applications dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v BBI [2007] QCA 376
PARTIES:	R v BBI (applicant/appellant)
FILE NO:	CA No 140 of 2007 DC No 45 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED ON:	2 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	16 October 2007
JUDGES:	McMurdo P, Dutney J and Douglas J Separate reasons for judgement of each member of the Court, each concurring as to the orders made
ORDER:	Applications dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS - WHEN REFUSED – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the applicant was convicted of maintaining an unlawful sexual relationship and two circumstances of aggravation - where in 2003 the Court extended the time within which he could appeal against his conviction - where the appeal was listed to be heard but the applicant signed a form abandoning his appeal which was then taken to be dismissed when the registrar received that notice - where the applicant applies again for leave to adduce evidence, another application for extension of time within which to appeal and a notice of an application to appeal against his conviction and sentence – whether the notice of abandonment should be set aside – whether the applicant has shown realistic prospects of success. Criminal Code Act 1899 (Qld) s 229B (2) Criminal Practice Rules r 70(3) Gallagher v The Queen (1986) 160 CLR 392, cited R v Marriner (2006) 160 A Crim R 63, cited
COUNSEL:	Applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	Applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent